88 Neb. 41 | Neb. | 1910
This is an action by the assignee of a mortgage to redeem from a tax foreclosure sale and to foreclose said mortgage. The defendant prevailed, and the plaintiff appeals.
It appears from the record that in February, 1889, Henry S. Davis, the owner of the land in controversy, executed a note to the Showalter Mortgage Company payable in five years, and to secure payment thereof executed a mortgage upon said real estate. February 11, 1902, the mortgagee assigned said note and mortgage to Ida A. Davis, and the assignment was duly recorded in January, 1905. During the year 1902 the plaintiff became
In Carter v. Leonard, 65 Neb. 670, we held that where the allegation that no action at law had been commenced to collect the mortgage debt is denied in the answer, and the mortgage has been the property of several successive parties, the plaintiff should make prima facie proof that no action had been commenced by any of those persons. The evidence in the case at bar is almost parallel with that introduced in McDowell v. Markey, 77 Neb. 141, where the parties occupied practically the same relation with respect to each other as do the litigants in the case at bar. In the cited Case, a judgment for the defendants was affirmed.
We should not be understood as holding that no evidence other than the testimony of every owner of the note and mortgage will suffice to prove the truth of the allegations required by section 850 of the code, but the plaintiff should at least prove facts and circumstances from which a court may reasonably deduce the ultimate facts. If the
The judgment of the district court is right, and is
Affirmed.